“Protect individual rights better in the European criminal justice area”

If a Dutch person is suspected of theft in Poland then he or she is automatically put on an aeroplane to Poland and held in custody there until the court case. The European Arrest Warrant (EAW) which makes that possible is based on the trust that procedural rights in EU Member States are comparable just like the conditions in prisons. “But that surrender practice is based on a misconception”, says PhD researcher Wouter van Ballegooij, who for many years studied these matters and also worked in the European Parliament. “Collaboration is not the same as subjecting yourself to the will of the other party. Certainly not if that is to the detriment of individual rights.” His thesis describes how it can or, to be honest, must be done differently. “Now is the time to act.” Take the case of Robert Hörchner. This Dutchman from the province of Brabant was handed over to the Polish authorities in 2007, because he was suspected of involvement in the renting of a Polish building where cannabis was being grown. He was remanded in custody for ten months where he shared a cell with nine others, including hard criminals, in appalling conditions. After paying 4500 euros in bail he was allowed to return to the Netherlands where amongst other things he was diagnosed with a post-traumatic stress disorder.

Wouter van Ballegooij saw Hörchner once at a congress. That made a big impression on him, especially because things could have happened differently. “The handing over of your citizen to such an extreme prison situation cannot of course be justified with an appeal to mutual trust. Especially because prior to the surrender it had already been argued that the prison conditions were unsatisfactory. And even if there is a strong suspicion against a person it is always better to ensure that he or she can await the process in the Netherlands instead of being remanded into custody for a longer period in Poland. That sounds simple and that is indeed the case. However the current interpretation of the principle of mutual recognition is where things fail.”

9/11According to Van Ballegooij that problem arose shortly after 9/11, when a lot of pressure was exerted to speed up the extradition of terrorist suspects. “As a result of the speed with which that collaboration was set up, without us actually being ready for this, we are now left with the pieces. The free movement of people throughout Europe absolutely requires collaboration in the area of criminal law between Member States. However German criminal law is not the same as that in the Netherlands or Belgium. We all say that we satisfy human rights criteria but in practice not everything is right. And people also have rights as EU citizens. Therefore you cannot blindly say: we simply trust that things are okay and we will send our citizens throughout the EU. That is a strange twist in an EU that has been built on citizenship since the Maastricht Treaty. Since the Treaty of Amsterdam we have been working on a common legal area for those citizens to live in.”

In practice, that is what the Netherlands is doing. The hundreds of European Arrest Warrants that the Netherlands receives each year are nearly all executed. “The Netherlands is acting like a model pupil, whereas an English judge, for example, has already judged on several occasions: ‘If our citizen lands up in that prison in Italy then we will not hand the person over; we demand guarantees that he will end up in a decent prison with sufficient cell space.’ I call for a redefinition of the concept of mutual recognition. If a prosecution process is initiated in another EU Member State then we need to do something about that in the Netherlands just as we expect other Member States to do for us. But the decision to place a Dutch person in a foreign cell is a following step. I call for a distinction between recognition and execution. And in that execution you need to take the situation of the individual into account. The recognition of each other's interests does not automatically mean that you cannot safeguard your own interests and those of your subjects and residents, as long as these fit within the European objective. Because consumer rights and human rights are also European objectives.”

Blindly followingAccording to Van Ballegooij it has never been said that EU integration should proceed blindly. “That is what the European Commission has made of it because after 9/11 rapid results were needed. However if you want real results then you will have to go through the difficult process of harmonising national legislation. Up until that time collaboration does not mean that you can impose your will on the other and even after harmonisation one needs to realise that human rights still can be violated in individual cases.”

To gain a better understanding of the material Van Ballegooij worked for eight years in the European Parliament and in this period he also worked on the realisation of further legislation around this subject. “The European Parliament has repeatedly asked the European Commission to modify the European Arrest Warrant to make it clear that it should be used proportionately and that the judge may demand guarantees or may even refuse handing a person over if there are indications of an actual or potential violation of human rights. However up until now the European Commission has hesitated to do this because it fears a change to the European Arrest Warrant will lead to fewer people being handed over. In my view refusing to implement reforms because you fear fewer people will be handed over is completely undemocratic. Surely the effectiveness of criminal law may not be measured on the basis of the number of people handed over? It can often be a better solution, for both the individual and the taxpayer, who ultimately pays the costs of all of the citizens kept in custody. And, in particular, the bluntness of the current EU legislation gives rise to harrowing cases that are widely reported on in the tabloids, which leads to even greater Euroscepticism still.”

IntegrationIn the lawyer's view it is high time to redefine the principle of mutual recognition. “9/11 happened fourteen years ago, populism is mushrooming in Europe, and the European Arrest Warrant is being used to demonstrate that European integration is wrong. That is not the case." He urgently calls for a continued building of Europe in a proportional manner. Would it not be easier for him to do that as a politician? “As politician I could never have written this book. I see it more as my task to wake people up and that is also what academics should do. My task was to explain that European law is not wrong in these cases but that it is only explained wrongly.”

He hopes that the book, which is also available from booksellers, will be a reality check for judges and policymakers, for example, so that his vision can contribute to a further European integration. “This will change; at a certain point the European Commission and the Court of Justice of the European Union will have to turn around.”

After the defence of his PhD thesis, Van Ballegooij will start a job at the European Parliamentary Research Service. He will conclude a period of ten years of research alongside his job with perhaps the greatest reward being the fact that his sense of justice has been restored again. “Ten years ago I thought: ‘something is not right about how mutual recognition is interpreted, but what?’ I have now unravelled the knot without having to discard European integration. If we gain a sort of revenge society in Europe then my European dream would be more or less over. Somebody who committed a crime should be punished but at the same time we should deal with people properly regardless of what they are suspected of.”

Wouter van Ballegooij gained his doctorate on 9 July 2015 from Maastricht University for his thesis entitled ‘The nature of mutual recognition in Law; Re-examining the notion from an individual rights perspective with a view to its further development in the criminal justice area’. While writing this thesis he worked for the past eight years at the European Parliament in various jobs.